Setzer v. Ulrich

• Decision Date: 04 February 1936
• Docket Number: No. 23475.,23475.
• Citation: 90 S.W.2d 154
• Court: Missouri Court of Appeals
• Parties: SETZER v. ULRICH.

90 S.W.2d 154

SETZER v. ULRICH.

No. 23475.

St. Louis Court of Appeals. Missouri.

February 4, 1936.

Appeal from St. Louis Circuit Court; Charles B. Williams, Judge.

"Not to be published in State Reports."

Action by Christiana Setzer against Ruth Ulrich. Judgment for plaintiff, and defendant appeals.

Affirmed.

Anderson, Gilbert & Wolfort, Sidney U. Hiken, and Norman Bierman, all of St. Louis, for appellant.

S. D. Flanagan, of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action to recover damages for personal injuries sustained by plaintiff in a collision between a motortruck in which she was riding and an automobile owned and driven by defendant. The collision occurred on Gravois road, in St. Louis county, in the afternoon of July 4, 1932. The truck in which plaintiff was riding was being driven by her husband, Herman Setzer. It was traveling northward towards St. Louis. Defendant's automobile was traveling in the same direction immediately in front of the truck.

Plaintiff in her petition alleges, inter alia, that her injuries were directly and proximately caused by the negligence of defendant, in that the defendant negligently started to drive her automobile off the pavement onto the shoulder to the right thereof, and then negligently swerved her said automobile back onto the pavement and brought it to a sudden stop, without giving the driver of the truck in which plaintiff was riding any warning of her said intended movements and of her intention to stop her said automobile on said highway, when she knew, or by the exercise of the highest degree of care would have known, that by so doing she would thereby cause a collision between her automobile and the truck in which plaintiff was riding, and that plaintiff might thereby be injured.

The answer is a general denial, coupled with a plea of contributory negligence.

The trial, with a jury, resulted in a verdict and judgment for plaintiff for $2,500, and defendant appeals.

The vehicular traffic was heavy on Gravois road at the time of the accident. There was a line of traffic going north towards St. Louis and a line of traffic going south. The truck in which plaintiff was riding and the defendant's automobile were in the line of northbound traffic. Both cars were traveling at about the same speed, twenty to twenty-five miles per hour; they were traveling on an upgrade. The truck was twelve to fifteen feet behind defendant's car.

According to the evidence for plaintiff, defendant turned her car off the concrete to the right onto the shoulder, and then immediately turned it back onto the concrete and suddenly stopped it without giving any warning or signal. Only about one-half the width of the car went off the concrete before she turned the car back onto the concrete. Mr. Setzer, the driver of the truck, applied his brakes, but was unable to stop the truck, and it collided with defendant's car. Plaintiff was thrown forward, so that she fell against the emergency lever and other parts of the truck, and thereby received the injuries for which she sues.

Mr. Setzer testified, for plaintiff, that prior to the accident he had been following defendant's car for about a mile, and that he noticed that defendant's car as it proceeded northward would at times wind in and out like it was being driven by a new or inexperienced driver; that the car went off the concrete and swung right back over on the concrete; that he applied his brakes, but the truck slid; that if he had been given timely warning before the accident happened, so that he would have been prepared for it, he could have stopped the truck within a distance of from two to three yards, but that "this happened too unexpected, nobody expected it"; that he did not anticipate from the actions of the car before this that something was liable to happen there; that "it was unexpected"; that from the way defendant was driving before the accident happened he was afraid something was going to happen, but that "nobody expected it up there"; that "after she was up that much" he did not expect something like that to happen; that "not anybody is prepared for something you don't expect"; that just the second he saw her wheels go off the concrete he put on his brakes "and she swung over the same second"; that he was two or three car lengths from the top of the hill when the accident happened.

The truck was a Chevrolet with a small body. Plaintiff was riding beside her husband in the cab.

Defendant testified as follows: "The traffic on Gravois Road was pretty much crowded, especially coming in towards St. Louis, just one car right after the other. It was a continuous line. There were cars in front of me and behind me. I was traveling twenty or twenty-five miles per hour, about the same speed of the other cars. The traffic coming out from St. Louis was not quite so heavy as it was going in. I was going upgrade, and was almost to the top of the hill at the time of the accident. I noticed the car back of me by looking in my mirror. I had my mirror adjusted so I could see the traffic back of me. Just before I was hit I didn't notice the car back of me. The first I knew that an accident was going to happen was when I was hit from the back. Just before I was hit I never slackened the speed of my car or increased it. I had not pulled off the concrete. My car at the time it was struck was right in the middle of the highway between the outside and the black line. I did not apply my brakes before I was hit. I had not swerved to the right or left before I was hit, but was going right straight ahead traveling about twenty-two to twenty-five miles per hour. I had not gone off the highway. The wheels were not on the dirt. There was nothing in front of me that caused me to stop suddenly; the car in front of me was not that close." Defendant further testified that she was an experienced driver.

Defendant assigns error here upon the refusal of her instruction in the nature of a demurrer to the evidence, and urges, as grounds for the assignment: (1) That the plaintiff's own evidence shows as a matter of law that defendant's negligence was not the proximate cause of her injury; and (2) that plaintiff's own evidence shows that she was guilty of contributory negligence as a matter of law.

Respecting the first ground of the assignment, defendant says that it was the failure of the driver to stop the truck, resulting from the sliding of the truck when the brakes were applied, that was the proximate cause of the collision.

There can hardly be a question that, under the circumstances shown in evidence, defendant was negligent in swerving her automobile off the pavement and then suddenly swerving it back onto the pavement and stopping it in front of the truck, without a timely warning or signal of her intention to do so. Ritz v. Cousins Lumber Co., 227 Mo.App. 1167, 59 S.W. (2d) 1072. Of course, a causal connection must be shown between the injury and the negligence to warrant a recovery, but such causal connection need not be shown by direct and positive testimony; it is sufficient if the causal connection appears by fair inference from the facts and circumstances in evidence. Roper v. Greenspon (Mo.App.) 192 S.W. 149.

While it is elementary law that an act alleged as causing an injury, for which recovery of damages is sought, must be shown to be the proximate cause of the injury to warrant a recovery, this does not mean that the act complained of must be the immediate cause, the direct, or the last or nearest cause in time or distance to the consummation of the injury, but it must be the nearest independent cause which is adequate to and does produce the injury; that is to say, it must be the immediate or direct cause in the sense that it is a cause between which and the injury no new and independent cause intervenes to break the continuity. If, however, the occurrence of the intervening cause might reasonably have been anticipated, such intervening cause will not interrupt the connection between the original act and the injury. It is not essential that the person committing the original act could or might have foreseen the particular consequence, or the precise form of the injury, or the particular manner in which it occurred, or that it would occur to the particular person. It is only essential that in the exercise of due care he could or might have foreseen or anticipated that some injury might result. In other words, if a person does an act, and he knows, or by the exercise of reasonable foresight should have known, that in the event of a subsequent occurrence, which is not unlikely...